Etopia Evans, as the Representative of the Estate of Charles Evans v. Arizona Cardinals Football Club, LLC

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ETOPIA EVANS, as the Representative of
the Estate of Charles Evans; ERIC KING;
ROBERT MASSEY; TROY SADOWSKI;
CHRISTOPHER GOODE; DARRYL
ASHMORE; GERALD WUNSCH;
ALPHONSO CARREKER; STEVEN
LOFTON; DURIEL HARRIS; JEFFREY
GRAHAM; CEDRIC KILLINGS;
REGINALD WALKER,
Plaintiffs-Appellants,
v.
ARIZONA CARDINALS FOOTBALL
CLUB, LLC; ATLANTA FALCONS
FOOTBALL CLUB LLC; BUCCANEERS,
LP; BUFFALO BILLS, INC.; CHARGERS
FOOTBALL COMPANY LLC;
CINCINNATI BENGALS, INC.;
CLEVELAND BROWNS FOOTBALL
COMPANY, LLC; DALLAS COWBOYS
FOOTBALL CLUB, LTD.; FOOTBALL
NORTHWEST LLC, DBA Seattle
Seahawks; FORTY NINERS FOOTBALL
COMPANY LLC; GREEN BAY
PACKERS, INC.; HOUSTON NFL
HOLDINGS, LP, DBA Houston Texans;
INDIANAPOLIS COLTS, INC.;
JACKSONVILLE JAGUARS LLC;
No. 17-16693
D.C. No. 3:16-cv-01030-WHA
MEMORANDUM*
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
FEB 6 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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KANSAS CITY CHIEFS FOOTBALL
CLUB, INC.; MIAMI DOLPHINS, LTD.;
MINNESOTA VIKINGS FOOTBALL
CLUB, LLC; NEW ENGLAND PATRIOTS
LLC; NEW ORLEANS LOUISIANA
SAINTS, LLC; NEW YORK FOOTBALL
GIANTS, INC.; NEW YORK JETS, LLC;
PDB SPORTS LTD., DBA Denver Broncos;
PANTHERS FOOTBALL, LLC, DBA
Carolina Panthers; PHILADELPHIA
EAGLES LLC; PITTSBURGH STEELERS
SPORTS, INC.; PRO-FOOTBALL, INC.,
DBA Washington Redskins; TENNESSEE
FOOTBALL, INC.; CHICAGO BEARS
FOOTBALL CLUB, INC.; THE DETROIT
LIONS, INC.; OAKLAND RAIDERS, LP;
THE LOS ANGELES RAMS LLC;
BALTIMORE RAVENS, LP,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted December 19, 2018
San Francisco, California
Before: CALLAHAN, N.R. SMITH, and MURGUIA, Circuit Judges.
This case arises from a suit brought by former players and the estate of a
former player of the National Football League (“NFL”), accusing the NFL of
perpetuating a “return-to-play” scheme in which players were allegedly
administered numerous medications and pressured to continue playing, despite

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having suffered physical injuries that had yet to fully heal.1 After filing their initial
complaint, plaintiffs amended their complaint in November 2016 to include a
cause of action under the Racketeer Influenced and Corrupt Organizations Act
(“RICO”). The district court subsequently dismissed plaintiffs’ RICO claim as time
barred and entered a final judgment.2 Plaintiffs appealed.3 A district court’s
dismissal on statute of limitations grounds is reviewed de novo. Donoghue v.
Orange Cty., 848 F.2d 926, 929 (9th Cir. 1989). We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
The statute of limitations for a civil RICO claim is four years. Grimmett v.
Brown, 75 F.3d 506, 510 (9th Cir. 1996). Plaintiffs argue that their civil RICO
claim was timely because their RICO claim did not begin to accrue until March
2014 when plaintiffs allegedly first learned of defendants’ fraudulent scheme (i.e.,
that their claims are subject to the injury and pattern discovery rule). Plaintiffs’
argument is barred by the Supreme Court’s holding in Rotella v. Wood, 528 U.S.
549, 555 (2000). In Rotella, the Court rejected the “injury and pattern discovery”
1 We assume the parties’ familiarity with the facts and procedural history.
2 The district court dismissed all of Plaintiffs’ other claims on Defendants’ motions
to dismiss and for summary judgment.
3 Plaintiffs failed to raise in their opening brief any arguments concerning the
dismissal of their conspiracy claim, and accordingly, we deem such arguments
waived on appeal. Tri-Valley CAREs v. U.S. Dep’t of Energy, 671 F.3d 1113,
1129–30 (9th Cir. 2012) (citations omitted).

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rule instead holding, “we have been at pains to explain that a discovery of the
injury, not discovery of the other elements of a claim, is what starts the clock [for
civil RICO claims].” Id. (emphasis added).
Even prior to Rotella, this Circuit has applied the “injury discovery” rule,
which provides that “the civil RICO limitations period begins to run when a
plaintiff knows or should know of the injury that underlies his cause of action.”
Grimmett, 75 F.3d at 510 (internal quotation marks and citation omitted); see also
Pincay v. Andrews, 238 F.3d 1106, 1109 n.3 (9th Cir. 2001) (noting that Rotella
“left our ‘injury discovery’ rule intact.”). Here, plaintiffs knew, or should have
known, of their primary business injury—that their careers had been “cut short”—
when their respective playing careers ended. All seven RICO plaintiffs alleged that
their careers ended prematurely after suffering significant physical injuries.
Because the most recent plaintiff’s NFL career ended in 2004 (Jerry Wunsch’s
career), plaintiffs’ RICO claim expired at the latest in 2008, approximately eight
years before plaintiffs amended their complaint to include a RICO claim. The
possibility that plaintiffs may have discovered their allegedly diminished post-NFL
business prospects after 2004 does not render plaintiffs’ RICO claim timely. See
Grimmett, 75 F.3d at 512–14 (limitations period begins to run as soon as plaintiff
suffers any business injury unless a “new” injury is caused by a “new and
independent” act within the four-year limitations period).

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Plaintiffs cite Living Designs, Inc. v. E.I. DuPont de Nemours & Co., a post-
Rotella case, for the proposition that a civil RICO claim instead begins to accrue
when a plaintiff has actual or constructive knowledge of the fraud rather than the
injury. See 431 F.3d 353, 365 (9th Cir. 2005). However, Living Designs is
distinguishable. In that case, it was not until plaintiffs discovered defendant’s fraud
that they discovered their injury. See id. at 364 (“The harm Plaintiffs allege is
fraudulent inducement . . . .”). In this case, plaintiffs knew of their injury—that
their careers had been “cut short”—as soon as their careers ended due to physical
injuries. Therefore, the district court properly dismissed plaintiffs’ RICO claim as
time barred.
Plaintiffs also argue that their RICO claim should be equitably tolled due to
Defendants’ fraudulent concealment. To establish equitable tolling, a plaintiff must
plead with particularly that the defendant actively misled her, and that she had
neither actual nor constructive knowledge of the facts constituting her RICO claim
despite her due diligence in trying to uncover those facts. Grimmett, 75 F.3d at
514. Here, plaintiffs failed to allege any facts, let alone with particularity, that they
exercised due diligence in trying to uncover the facts giving rise to their RICO
claim. Plaintiffs’ argument that defendants’ doctors and trainers engaged in
“passive conduct,” namely the failure to disclose the consequences of taking
various medications, which concealed from plaintiffs the existence of their RICO

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claim, likewise fails. Plaintiffs’ amended complaint is replete with allegations
demonstrating plaintiffs’ knowledge of the facts on which their RICO claim is
based, such as the receipt of pills on airplanes, in unmarked containers, and
without prescriptions. Accordingly, plaintiffs’ RICO claim is untimely, and
equitable tolling is not warranted.4
AFFIRMED.
4 Plaintiffs’ motion to supplement the record (No. 24) is DENIED as moot.

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